Opinion
D074821
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA SANCHEZ, Defendant and Appellant.
Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD275335) APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Dismissed. Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Christina Sanchez pled guilty to one count of stalking with a court order in effect (Pen. Code, § 646.9, subd. (b)), and one count of disobeying a court order (§ 273.6, subd. (a)). The trial court sentenced Sanchez to state prison for four years, suspended execution of the sentence, and placed her on probation for three years, subject to various conditions, including conditions that prohibited her from attempting to contact the victim.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
In her opening brief, Sanchez raised challenges to several of the probation conditions. Specifically, Sanchez challenged conditions restricting her right to intrastate travel, requiring that Sanchez notify her probation officer of contacts with law enforcement, and restricting her use and possession of drugs and alcohol.
Sanchez also argued in her opening brief that the trial court's imposition of several fines, fees and penalty assessments, without considering her ability to pay those fines, fees and assessments, violated her due process rights under the rule announced in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). At oral argument in this court, Sanchez's counsel informed the court and opposing counsel, for the first time, that, while this appeal was pending, the trial court had conducted an ability to pay hearing and had stayed the fines, fees and assessments previously imposed. Counsel stated that he was therefore withdrawing the Dueñas argument. However, we note that counsel's failure to timely notify this court that the trial court had conducted an ability to pay hearing and stayed the fines, fees and assessments such that this issue was mooted for purposes of the appeal, resulted in a waste of judicial resources. In the future, counsel is admonished to inform the court promptly about events in the case that impact the issues on appeal.
While Sanchez's appeal was pending, the trial court found that Sanchez had violated the terms of her probation by having made several "attempts to contact the victim in this case." The court revoked Sanchez's probation and sentenced her to prison. Given the court's termination of probation, Sanchez acknowledges that her claims as to the validity of her probation conditions are moot, but she requests that we exercise our discretion to consider her challenges to two of the conditions, notwithstanding such mootness. We accept Sanchez's concession that her claims regarding her probation conditions are moot, and we decline to exercise our discretion to consider those claims.
Accordingly, we dismiss Sanchez's appeal.
II.
FACTUAL BACKGROUND
In light of Sanchez's guilty plea, there was no trial in this case. Our factual background is drawn from the plea colloquy.
While a temporary restraining order was in place, Sanchez unlawfully, willfully, and maliciously, repeatedly followed the victim and made a credible threat with the intent to place the victim in fear. On another date, Sanchez violated a temporary restraining order.
III.
DISCUSSION
A. Sanchez's claims pertaining to the trial court's imposition of probation conditions are moot and we decline to exercise our discretion to address her claims
Sanchez claims that the trial court imposed several invalid probation conditions, including conditions that allegedly improperly: (1) restricted her right to intrastate travel, (2) required that she notify her probation officer of contacts with law enforcement, and (3) restricted her use and possession of drugs and alcohol.
1. Factual and procedural background
In August 2018, the trial court placed Sanchez on three years of formal probation. The probation order contained numerous conditions, including directing Sanchez to "comply with any order of the Superior Court, including restraining orders." The order also directed Sanchez not to "knowingly contact or attempt to contact, annoy, or molest, either directly or indirectly," the victim.
The same day that the court issued its order placing Sanchez on probation, the court entered a restraining order prohibiting Sanchez from having any "personal, electronic, telephonic or written contact" with the victim.
In April 2019, Sanchez filed her opening brief in this court in which she challenged the following conditions contained in the August 2018 probation order:
(1) Condition 6(l): "Obtain [probation officer's] consent before leaving San Diego County."
(2) Condition 6(k): "Provide [her] true name, address, and date of birth if contacted by law enforcement," and "[r]eport contact or arrest in writing to the [probation officer] within 7 days."
(3) Conditions 8(b), 8(c), 8(f), 9 (c), 14(a) and 14(b):
"8b. Do not knowingly use or possess alcohol if directed by the [probation officer]."
"8c. Attend 'self-help' meetings if directed by the [probation officer]."
"8f. Submit to any chemical test of blood, breath, or urine to determine blood alcohol content and authorize release of results to
[probation officer] or the court whenever requested by the [probation officer], a law enforcement officer, or the court ordered treatment program."
"9c. Do not knowingly use or possess any controlled substance without a valid prescription and submit a valid sample for testing for the use of controlled substances/alcohol when required by the [probation officer], law enforcement officer, or treatment provider."
"14a. Participate in a substance use level of care assessment within seven business days if directed."
"14b. Enroll in and adhere to substance use treatment and recovery services, as clinically indicated."
In August 2019, while Sanchez's appeal was pending, the trial court held a probation revocation hearing. At the conclusion of the hearing, the court found that Sanchez had violated numerous probation conditions. In particular, the court stressed that there had been "attempts to contact the victim in this case," and that those attempts constituted "violations of the restraining order." The court stated that it was Sanchez's attempts to contact the victim that led to the court's decision to revoke her probation:
"Those are the violations which broke the camel's back in the mind of the probation officer, and those are the violations that will break the back of any judge when we're dealing with the charge where the probation is granted on a stalking charge, and the failure to comply with the protective order, especially when there's a — a [stay of] execution of sentence. Probation is revoked."
The court also found that Sanchez violated Probation Condition 9(c), " 'Do not knowingly use or possess any controlled substance without a valid prescription. Submit a valid sample for testing for controlled substances, alcohol, when required by the probation officer, law enforcement officer, or treatment provider.' "
The court proceeded to order Sanchez to serve the four-year sentence that it had previously imposed, but stayed, upon the court's initial grant of probation.
After this court received notice of the trial court's order revoking probation and imposing the previously suspended sentence, we directed Sanchez to filed a supplemental letter brief. Our briefing request stated in relevant part:
"In her brief on appeal, Sanchez raises several claims pertaining to various probation conditions. In light of the trial court's August 2, 2019 order revoking probation and sentencing Sanchez to prison, Sanchez is directed to file a supplemental letter brief, no longer than five single-spaced pages, addressing whether any, or all, of her claims on appeal pertaining to the trial court's imposition of probation conditions are moot. To the extent that Sanchez claims that any of her probation condition claims are not moot, she may discuss, what impact, if any In re Ricardo P. (2019) 7 Cal.5th 1113[] [(Ricardo P.)] has on such claims."
In Ricardo P., supra, 7 Cal.5th 1113, the California Supreme Court clarified the law governing when an "electronics search [probation] condition . . . is ' "reasonably related to future criminality," ' " (id. at p. 1116) in determining the validity of the condition under People v. Lent (1975) 15 Cal.3d 481.
We also permitted the People to file a supplemental responding letter brief.
In her supplemental letter brief, Sanchez acknowledges that, due to the trial court's order revoking probation and sentencing her to prison, she "is no longer subject to the probation conditions challenged in . . . her opening brief." Sanchez further acknowledges that "[o]rdinarily, the revocation of probation renders challenges to probation conditions moot." However, Sanchez notes that there are "exceptions . . . [that] authorize a court to exercise its discretion to resolve an issue that otherwise would be moot," and she requests that this court "exercise [our] discretion" to resolve two of her claims pertaining to the probation condition. Specifically, Sanchez requests that we consider her claims pertaining to the probation conditions related to intrastate travel and drugs and alcohol.
Sanchez does not argue that we should exercise our discretion to consider her challenge to the probation condition requiring that Sanchez notify her probation officer of contacts with law enforcement.
The People filed a supplemental brief in which they argue that the trial court's revocation of probation and its order that Sanchez serve her previously suspended prison sentence "have rendered all of her probation related claims moot and no exceptions to the mootness doctrine apply."
2. Governing law
Ordinarily, the trial court's termination of a defendant's probation moots any challenges to the imposition of the conditions of probation. (See People v. Garcia (2017) 2 Cal.5th 792, 800 [stating that, in light of the termination of defendant's probation, "the question of these probation conditions' validity is now moot with respect to this defendant"].)
In Harris v. Stampolis (2016) 248 Cal.App.4th 484, the court outlined the following discretionary exceptions to the rule that a reviewing court will not ordinarily consider moot claims:
" ' "[T]here are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court's determination [citation]." ' " (Id. at p. 495.)
3. Application
We accept Sanchez's concession that all of her probation condition claims are moot.
Notwithstanding the mootness of her claims, Sanchez requests that we exercise our discretion to consider, on their merits, her claims pertaining to the probation conditions restricting her right to intrastate travel and restricting her possession and use of drugs and alcohol for several reasons. Sanchez maintains that whether the probation condition that required that she "[o]btain [probation officer's] consent before leaving San Diego County," is overbroad or vague is a matter of public interest. She also contends that whether the trial court validly imposed the drug and alcohol conditions is a "question of public interest," given the California Supreme Court's reformulation of the law in this area in Ricardo P., supra, 7 Cal.5th 1113.
In addition, with respect to both the travel and the drug and alcohol conditions, Sanchez argues that we should consider her claims since she is "likely" to be subjected to similar conditions upon her release on parole. Finally, she maintains that there remains a "material question," concerning the trial court's decision to impose the drug and alcohol conditions in that the trial court's misreading of the extent of her prior drug use when imposing the probation conditions "may influence the Department of Corrections and Rehabilitation when it imposes parole conditions."
In imposing the drug and alcohol conditions, the trial court stated that during the time Sanchez committed the underlying crimes, "we have marijuana use every day . . . ." (Italics added.) The People acknowledge in their brief on appeal that it appears that the trial court misread the probation report, which stated that Sanchez was using medical marijuana "once per week at the time of arrest." (Italics added.)
We decline Sanchez's request to exercise our discretion to consider these claims. Sanchez's garden-variety challenges to these commonly imposed probation conditions may, and undoubtedly will, be tested in a case in which the defendant remains subject to such conditions. Further, the mere fact that Sanchez may be subjected to similar conditions upon her release on parole does not warrant exercising our discretion to consider the moot probation condition claims here, particularly in light of the fact that Sanchez will have the opportunity to challenge such hypothetical parole conditions in future proceedings, in the event that such conditions are in fact imposed. (See, e.g., In re Stevens (2004) 119 Cal.App.4th 1228, 1234 [stating that "[c]onditions of parole must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee"].)
Accordingly, we conclude that Sanchez's claims pertaining to the trial court's imposition of her probation conditions are moot and we decline to exercise our discretion to address her claims notwithstanding such mootness.
IV.
DISPOSITION
Sanchez's appeal is dismissed.
AARON, J. WE CONCUR: MCCONNELL, P. J. HUFFMAN, J.